Determination Of And Limitations On The Failure Of Ascertainment Of Foreign Law

The failure of ascertainment of foreign law, one of the outcomes arising from ascertaining foreign law, means that the definite content still cannot be confirmed after the judge or the parties’ascertainment. As ones who have the power determining "the failure of ascertainment of foreign law", judges are endowed with comparatively superior power on what conditions shall be satisfied when determining. Therefore, in order to prevent judges from abusing this power and exclude the application of foreign law under the pretext of the failure of ascertaining foreign law, defining the standards of determination of and limitations on the failure of ascertainment of foreign law on this issue is of great importance.Article 10 of the Application of the Law on Foreign-Related Civil Relations of the People’s Republic of China stipulates that, when the foreign law cannot be ascertained, the law of our country shall be applied alternatively. However, this law does not specify what is "cannot be ascertained". Then in 2012, the Supreme People’s Court issued Interpretations of the Supreme People’s Court on Several Issues Concerning Application of the Law on Foreign-Related Civil Relations of the People’s Republic of China (I), in which article 17 remedies the defects of article 10 in the former law by providing different judgment methods for the court and parties. Specifically, for the court, if the foreign law cannot be ascertained after adopting some "appropriate means", then the ascertainment of foreign law shall be determined failing. But for the parties, if they cannot provide the foreign law in a "reasonable time limit" designated by the court without a "cogent reason" the ascertainment of foreign law shall be determined failing as well. It seems that the content of article 17 is both comprehensive and distinct, however, some defects and omits do exist. Considering the phenomena commonly occurred in juridical practice that the court arbitrarily determines the ascertainment of foreign law failure to avoid its application, confirming the standards of determining the failure of ascertainment of foreign law to direct the relevant juridical practice is the target intended to achieve by this paper. So, this paper begins with the definition of the failure of ascertainment of foreign law and then inquire into its determination and limitations, hoping to do some benefit to our country’s legislation.Part I firstly explains what is the failure of ascertainment of foreign law, analyses its difference and connection with "no provision in foreign law", and points out that it is a subjective and relative concept. Then it concentrates on the determination of failure of ascertainment of foreign law, two parts-the subject and standards are included. Concretely, in consideration of independent exercise of judicial supremacy, duty allocation between the judge and parties during court hearing and common practice adopted by many countries, the main body who possesses the power of determining the failure of ascertainment of foreign law shall only be the judge. In addition, the basis of determination, relating to its standards of proof, is inseparably intertwined with one country’s scope of evidence on the foreign law.Part II expounds limitations on the failure of ascertainment of foreign law. Firstly, it discusses theoretical and practical foundation why judges’determining power of failure of ascertainment of foreign law shall be limited. No matter from perspectives of private international law, the system design of the failure of ascertainment of foreign law, or the legislation and juridical practice in many countries, limiting judges’determining power is all clearly in order. Secondly, it discusses restrictive measures for the failure of ascertainment of foreign law, such as the division of ascertaining liability, the choice of ascertaining methods, restrictions on the scope of evidence of the foreign law and the superior courts’supervision are recommended. Finally, extra territorial legislation modes on this issue are summarized.Part III returns to our country’s system of ascertainment of foreign law. It points out that on how to determine the failure of ascertainment of foreign law, some defects, such as providing different standards for the court and parties, improperly stipulating "cogent reason" for parties and only setting a few restrictive conditions, do exist in our law. To improve this situation, some measures such as stressing judges’ascertaining liability, selecting appropriate ascertaining methods, notifying parties to provide foreign law evidence in advance, allowing parties to supplement their evidence and restricting a reasonable time limit are suggested.To sum up, by combining empirical and theoretical research, this paper discusses the determination of and limitations on the failure of ascertainment of foreign law in detail, and finally returns to problems in our country’s legislation and juridical practice, makes some suggestions for the perfection of our country’s legislation.